SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

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nullification of discriminatory laws against sexual minorities and the introduction of protective legislation 60 . Nepal’s Country Code, a comprehensive legislation that includes criminal law provisions, explicitly criminalizes bestiality but also ambiguously punishes ‘unnatural’ sexual intercourse 61 . Nepal also has a system of citizenship wherein on the age of attaining majority any male or female in Nepal who satisfies certain domiciliary and ethnic conditions can apply and obtain a citizenship card. This card provides several entitlements including ration, passport, public employment opportunities, and residential rights. However, since the law permits persons to register only as male or female, metis, transgendered persons in Nepal, are effectively left out of such basic citizenship entitlements. The petitioner sought an order from the court which recognized the fundamental right to equality for metis so that they may obtain citizenship rights. The petitioner argued that transgendered persons are human beings too who should be recognized as such and have access to all rights entitled to males or females. The Supreme Court issued a “show cause” notice to the defendants, the Nepal government, Prime Minister and Council of Ministers, the Ministry of Law & Justice and the Parliament Secretariat. All the defendants responded by raising one main argument: that there was no need for special legal protection of the petitioners since the Interim Constitution guaranteed the right to non-discrimination on the basis of religion, sex, caste, origin, race, language or belief within which the petitioner’s rights were protected as such. The court relied considerably on international judicial and legislative developments related to the rights of sexual minorities while passing judgment. It also based its reasoning on comparative constitutional and legal provisions recognizing persons of a third gender, scientific evidence about the immutability of sexual orientation, and academic articles on the issue of sexual orientation. The judgment is unclear regarding the distinction between sexual orientation and gender identity. It relied on definitions and articulations provided in several documents, including the Yogyakarta Principles on the Application of International Human Rights Law in relation to Sexual Orientation and Gender Identity. It also described observations of the High Court of the UK and the Australian Family Court regarding gender identity, the European Court of Human Rights in relation to transexuality and the South African Constitutional Court in relation to sexual orientation in the case of The National Coalition for Gay & Lesbian Equality & Others v Minister of Justice & Others. Traversing case law of the US Supreme Court (Lawrence v Texas) and the Constitutional Court of Ecuador, the Court observed: “… it seems that the traditional norms and values in regards to the sex, sexuality, sexual orientation and gender identity have been changing gradually. It also seems that the concept specifying that the gender identity should be determined 60 Unlike some other jurisdictions where courts do not have the authority to direct the legislature to enact legislation, in Nepal the Supreme Court exercises such authority, and has done so in the past, such as in a case related to enforced disappearances in July 2007. It is unclear where such authority emanates from – the authors were unable to locate constitutional source for this exercise of power by the Nepal Supreme Court. 61 Part 4, Chapter 16 of Nepal’s Country Code states: “Sex with animals No 1: No one may penetrate an animal or make an animal penetrate him/her or may do or make another person do any kind of unnatural sex. No 2: If someone penetrates a cow among female animals one may be sentenced to two years jail and if not the cow then one year jail or 500 Nrs fine. No 3: If a woman makes an animal penetrate her, she may be sentenced to one-year jail or 500 Nrs fine. No 4: In this chapter, not mentioned in other sections, anyone who does or makes someone practice unnatural sex may be sentenced to one-year jail or 5000 Nrs fine. No 5: All the cases related to the law written in this chapter need to be reported within one year of the act taking place.” 22
according to the physical condition and psychological feelings of a person is being established gradually. The concept that homosexuals and third gender people are not mentally ill and it is their normal life style is in the process of establishment.” The court also relied on the Yogyakarta Principles and the 2006 Report of the UN High Commissioner of Human Rights to illustrate the prejudice and violence being faced by sexuality minorities due to the lack of sufficient legal protection. It pointed out that the Interim Constitution of Nepal has guaranteed equality in Article 13 and is supported by the Directive Principles of State Policy enshrined in Articles 33 & 34 which require the repeal of discriminatory laws and provision of social justice. Together with this were Nepal’s commitments under international treaties such as the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the Convention on the Elimination of All Forms of Racial Discrimination, which are considered national law under the mandate of the Nepal Treaty Act, 1991, which provides for the ratification of international treaties by Parliament thereby making such a treaty prevail over domestic legislation 62 . The court observed: And: “These [transgendered] people have been compelled to appear in the public life with the identity as determined according to their genital instead of their own characteristics and it is very important to rethink the state of affairs in the context of human rights and fundamental rights…We also should internalize the international practices in regards to the enjoyment of the right of an individual, changing world society and practices of respecting the rights of minority gradually. Otherwise, our commitment towards the human rights will be questioned internationally, if we ignore the rights of such people only on the ground that it might be a social stigma.” “Any provision that hurt the reputation and self-dignity as well as the liberty of an individual is not acceptable from the human rights' point of view. The fundamental rights of an individual shall not be shrunk on any grounds like religion, culture, customs, values etc.” The court held that there should not be discriminatory constitutional and legal provisions that restrict people of a third gender from enjoying their fundamental rights; that Lesbian, Gay, Bisexual, Transgender and Intersex people should not be deprived the enjoyment of their fundamental rights only because of their sexuality and the State should make necessary arrangements for people of a third gender. It observed that, “…people with having third type of gender identity other than the male and female and different sexual orientation are also Nepali citizen and natural person as well, so they should be allowed to enjoy the rights with their own identity as provided by the national laws, constitution and international human rights instruments. The state has the responsibility to ensure appropriate environment and legal provisions for the enjoyment of such rights. It does not mean that only 62 Section 9, Nepal Treaty Act, 1990 23
Page 1 and 2: THE INTERNATIONAL COUNCIL ON HUMAN
Page 3 and 4: 6. ACCESS TO HEALTH SERVICES IN REL
Page 5 and 6: ABBREVIATIONS AIDS ART ARV CEDAW CE
Page 7 and 8: in the regional reviews. This is a
Page 9 and 10: provide for information and distrib
Page 11 and 12: B. METHODOLOGY In keeping with the
Page 13 and 14: elevant and key laws and judgments;
Page 15 and 16: The inability of many sexually stig
Page 17 and 18: Equality irrespective of a person
Page 19 and 20: The centrality of women’s rights
Page 21: social standing, religious belief,
Page 25 and 26: Constitutional Court in The Nationa
Page 27 and 28: protections or statutory law. There
Page 29 and 30: However it also noted that every Ri
Page 31 and 32: concerned with declaring that the h
Page 33 and 34: without guaranteeing the personal p
Page 35 and 36: to enlarge the meaning and content
Page 37 and 38: a concept has wider dimensions than
Page 39 and 40: Such conduct mentioned in clauses (
Page 41 and 42: embraced the complainant and asked
Page 43 and 44: does not sever the ties between the
Page 45 and 46: The potential recognition of same-s
Page 47 and 48: Similarly, seeking out sex educatio
Page 49 and 50: condom). Across such laws, the defi
Page 51 and 52: jurisdictions. Nepal, a country wit
Page 53 and 54: the conviction of the accused for s
Page 55 and 56: with an unmarried woman is not puni
Page 57 and 58: physical characteristics (virginity
Page 59 and 60: interventions and safeguards such a
Page 61 and 62: The opinion of the National Commiss
Page 63 and 64: was married to she would acquire im
Page 65 and 66: to consider the case of a woman see
Page 67 and 68: oth parties and deems all marital p
Page 69 and 70: female who has not attained 12 year
Page 71 and 72: Article 16 of the Universal Declara
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In Bangladesh, polygamy is allowed
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immovable property. The above propo
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consummation of marriage. The incap
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Violence, especially sexual violenc
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gender norms which many remand home
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female or a female to a male. It in
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from other forms of inequality as w
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c. Whereas victims of violence in h
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courts. 350 According to the Commis
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The Act provides for the appointmen
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Rani 383 it was held that a shared
Page 95 and 96:
The Act specifies imprisonment of 6
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property jointly or separately held
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upees or the amount of the dowry wh
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however, is that, of the 10,000 dea
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Addararachchi 439 the court conside
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harassment, the Indian Supreme Cour
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doer’s sexual desire by using doe
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In holding that there was no justif
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coerce or induce female inmates to
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material or detain any person for t
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consensual sexual activity with you
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The fined amount is to be given to
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the State and its citizens is one o
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every person “the right against e
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The law also includes the right of
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eing committed. 570 While prosecuti
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Broader provisions related to child
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in order to engage the child in suc
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her.” 631 A person is deemed to h
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that they are denied the fundamenta
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Indonesia’s Constitution recognis
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In Thailand too, abortion is illega
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With regard to the first question,
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Further, any pregnant woman may vol
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childbearing age to establish a hea
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Government could not be held liable
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among those in the reproductive age
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Members' right to protect public he
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7. INFORMATION, EDUCATION AND EXPRE
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education as well as non-discrimina
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The exchange of information through
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community.” 727 In each case, the
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Nepal’s Interim Constitution limi
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Sections 292, 292A, 293 and 294 of
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“...any interpretation of 'obscen
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“1 (a) Condones or extenuates act
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In Thailand, places of entertainmen
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8. SEX WORK This section examines h
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The use of raids, and exemptions fr
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clients or make an offer for a sex/
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and non-rehabilitative juvenile jus
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“In view of the aforesaid proposi
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person who commits the act are of t
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as parent or guardian has given his
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with one) on the charge that it was
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for sex workers while emphasizing t
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19. Azimuddin v State of Uttar Prad
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1. Acid Control Act, 2002 2. Acid-O
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13. Intellectual Property Act, 2003
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